Murphy v Trustees of Catholic Aged Care Sydney

6 ZHA v ZGZ [2018] NSWCATAP 249 Texts Cited: Andrew Greenwood, A Paper Concerning Aspects of Federal Jurisdiction (19 August 2017), TC Beirne School of Law, University of Queensland Category: Principal judgment Parties: John Murphy (Appellant) Trustees of Catholic Aged Care Sydney (Respondent) Representation: Counsel: E Finnane (Appellant) H Grace (Respondent)

Solicitors: Hill & Co Lawyers (Appellant) Makinson d'Apice Lawyers (Respondent) File Number(s): AP 17/33024 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2017] NSWCATCD 46 Date of Decision: 16 June 2017 Before: G Sarginson, Senior Member File Number(s): RV 16/42545

Background and Proceedings at First Instance

1. Mr Murphy resides at a retirement village with his German Shepherd dog known as "Rex". Section 55 of the Retirement Villages Act 1999 (NSW) (the RV Act), however, provides that a resident must comply with the village rules. Notwithstanding that rule 5 of the relevant village rules (Rule 5) allows the keeping of some pets (notably, fish or small caged birds), it expressly prohibits the keeping of dogs.
2. The Trustees of Catholic Aged Care Sydney (the Trustees) applied to the Tribunal for an order, under s 128(1)(c) of the RV Act, that Mr Murphy remove Rex from the village. Mr Murphy contended that Rex is not a pet, as contemplated by Rule 5, but is an assistance animal within the meaning of s 9 of the Disability Discrimination Act 1992 (Cth) (the DDA) and that it would be unlawful to order the removal of Rex. Ultimately, the Tribunal ordered the removal of Rex (the Decision).
3. Mindful that the dispute involved the "interaction between Commonwealth legislation and NSW [legislation]" (at [62] of the Decision) and that only a Court may exercise federal jurisdiction, the Tribunal resolved to approach the task by construing Rule 5 in a manner consistent with the provisions of the DDA (at [78] of the Decision). The Tribunal, therefore, held that Rule 5 applies to dogs other than "assistance animals" within the meaning of s 9 of the DDA (at [86] of the Decision).
4. The Tribunal then proceeded to consider whether the evidence demonstrated that Rex, in fact, answered the description of an assistance animal, as defined under the DDA. However, the Tribunal was not satisfied that Mr Murphy had a disability and therefore held that Rex could not be an assistance animal as contemplated by the DDA (at [95] of the Decision); and in any event, there was insufficient evidence for the Tribunal to be satisfied that Rex was trained or accredited as an assistance animal, as required by s 9(2) of the DDA (at [98]-[99] of the Decision). The Tribunal concluded that it was appropriate to order the removal of Rex from the retirement village (at [105] of the Decision).
5. Mr Murphy appeals from the Decision.
6. The Appeal Panel has concluded that the Tribunal did not have jurisdiction to hear and determine the matter.
7. Accordingly, we have decided to allow the appeal and quash the Decision and set aside the orders made at first instance in accordance with s 81(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
8. As there is no provision, relevant to this application, of the type found in Part 3A of the NCAT Act, which permits an authorised court to exercise the power of the Tribunal under relevant legislation in respect of federal diversity jurisdiction, the original application should be dismissed.

The Notice of Appeal

1. Mr Murphy appeals against the order that Rex is to be removed from the retirement village. The grounds stated in his Notice of Appeal include the following: 1. "NCAT does not have the jurisdiction to over-rule the accreditation of Rex as a Psychiatric Service Dog". 2. Rex is an assistance animal, who is in training and accredited by "MindDog", a Psychiatric Service Dog Association. 3. Rex is on the NSW Companion Animals Register. 4. "the DDA makes it unlawful for the [Trustees] to discriminate against the appellant 'in respect to access to accommodation'". 5. Rex is an accredited assistance animal for the purposes of the DDA. 6. Further evidence will be produced to demonstrate that the appellant meets the criteria of having a disability.

Extension of time

1. The appeal was filed out of time. Subject to s 41 of the NCAT Act, an appeal of this kind must be filed within 28 days from the day on which the appellant was notified of the decision or given reasons: r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). Here, the Decision was delivered on 16 June 2017 and the Notice of Appeal was filed 26 July 2017: up to 12 days late. The Notice of Appeal cites the ill health of Mr Murphy as contributing to the delay. The Trustees, in the Notice of Reply to Appeal, object to the Appeal Panel extending time for the filing of the appeal, on the grounds that there is no evidence as to why strict compliance with the rules will work an injustice and the granting of leave would be "contrary to the orderly and efficient conduct of the proceedings in the Tribunal, and the principles of finality in litigation and certainty."
2. The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], recently applied in ZHA v ZGZ [2018] NSWCATAP 249 at [54], identified the considerations upon which an extension of time may be granted. These included: the length of the delay, the reasons for the delay, the prospects of success of the appeal and any prejudice to the respondent. Whilst the factors identified in Jackson do not establish a code, they provide a valuable guide for the Appeal Panel in this matter.
3. Whilst the delay is not significant and the respondent does not cite any particular prejudice (noting that it refers to general assertions concerning principles of finality and certainty of litigation), there is scant evidence that could be said to support the contention that Mr Murphy's medical condition was the cause of the delay. The Tribunal refers to some of the material provided at first instance (at [91] of the Decision), but that is not persuasive on this issue. As part of the additional evidence sought to be relied upon in the appeal, there is some medical evidence regarding Mr Murphy's health and the impact of Rex on Mr Murphy's health. Mr Murphy himself deposes that he has some health issues. In particular, he deposes, in his affidavit dated 19 October 2017 (at [13]), to the fact that after the order was made for the removal of Rex, he was depressed, was struggling with ongoing issues concerning the care of his wife and had no legal representation. However, the new material filed by Mr Murphy for the purposes of the appeal was the subject of objection and in any event does not address, with any specificity, the reasons for the delay; and so we have not had regard to it for the purposes of the extension application. Nevertheless, the basis upon which we have decided the appeal - that the Tribunal does not have jurisdiction to hear and determine the matter - coupled with the short extension of time that is required and the absence of particular prejudice to the respondent, provides the warrant for the granting of an order to extend time to file the Notice of Appeal.

Question of law raised

1. Appeals lie as of right on any question of law, or with the leave of the Appeal Panel on any other ground: s 80 of the NCAT Act. To the extent that the grounds of appeal above did not raise a question of law, Mr Murphy sought leave to do so. As this is an appeal from the Consumer and Commercial Division, leave may only be granted if the Appeal Panel considers that the appellant may have suffered a substantial miscarriage of justice because of one of the factors identified in Sch 4 cl 12 of the NCAT Act.
2. As the appeal developed, it became clear that a major issue in the appeal was whether the Tribunal (including the Appeal Panel) has jurisdiction to entertain the matter. It was squarely raised by the appellant, in written and oral submissions, that the proceedings required the exercise of federal jurisdiction and accordingly, the Tribunal, which he contended is not a court, did not have authority to decide the matter. The Trustees agreed that the Tribunal is not a court, but maintained that the matter is not a federal matter; and so, it was within the Tribunal's jurisdiction to hear and determine the matter.
3. This raises a question of law.

Federal Jurisdiction

1. There is no doubt that "adjudicative authority in respect of matters listed in ss 75 and 76 [of the Constitution] is to be exercised only by 'courts'": Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns [2018] HCA 15 at [49]; 92 ALJR 423 per Kiefel CJ, Bell and Keane JJ.
2. Section 76(ii) of the Constitution provides: The Parliament may make laws conferring original jurisdiction on the High Court in any matter: … (ii) arising under any laws made by the Parliament; …
3. In the event that the proceedings constitute a matter arising under a federal law (ie: a federal matter), only a court of a State, as contemplated by the Constitution, has the authority to hear and determine the proceedings.
4. Accordingly, there are 2 questions that must be answered: 1. whether these proceedings constitute a "matter", as contemplated by s 76(ii) of the Constitution; and, if so, 2. whether the Tribunal is a court of a State such that it is invested with adjudicative authority.

Is the Tribunal a "court of a State"?

1. Turning to the second question first, the parties agreed that the Tribunal is not a court of a State.
2. The decision of the Court of Appeal of the Supreme Court of New South Wales in Attorney General for New South Wales v Gatsby [2018] NSWCA 254 confirms this position.

General principles

1. Drawing from a raft of cases, the following non-exhaustive set of principles, relevant to this case, emerge: 1. Not every proceeding that is touched by a Commonwealth law is a federal matter. For instance, a matter that requires only the interpretation of a federal law will not render the proceedings a federal matter. Similarly, it is not sufficient if the federal statute arises in an incidental fashion: Felton v Mulligan (1971) 124 CLR 367 at 408 (Walsh J); [1971] HCA 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 32; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1983] HCA 31. 2. The question of whether a federal matter arises is one of substance and not form: Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1; [2000] FCA 864 at [16] (Burchett J, Wilcox and Tamberlin JJ agreeing); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473 (Barwick CJ); [1981] HCA 7. 3. To identify the "matter" it is necessary to identify the justiciable controversy: Smith v Smith (1986) 161 CLR 217 at 237 (per curiam); [1986] HCA 36; Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [139] (Gummow and Hayne JJ). 4. It is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way: Felton v Mulligan at 374 (Barwick CJ); Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [21] (per curiam). 5. A federal issue may arise even where the parties have not directly asserted it, but where the court must nevertheless examine whether a right or duty under federal law exists: Moorgate at 476 (Stephen, Mason, Aickin and Wilson JJ). 6. A federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: LNC at 581; Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (1997) 189 CLR 654 at 656-7 (per curiam); [1997] HCA 40. 7. It is not necessary for the form of relief sought to depend on federal law; it is sufficient if the source of the right or subject matter of the claim exists as a result of federal law: LNC at 581-2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). 8. A federal matter will also arise where the source of a defence is a federal law: Felton v Mulligan at 375 (Barwick CJ) and 408 (Walsh J); LNC at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). 9. Unless a federal issue is colourable, there is a federal "matter": ie: the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 499 (Gibbs J); Felton v Mulligan at 373 (Barwick CJ) and 408 (Walsh J); Fencott v Muller (1983) 152 CLR 570 at 606 (Mason, Murphy, Brennan and Deane JJ); [1983] HCA 12; Smith at 237 (per curiam); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [7] (Gleeson CJ, Gaudron and Gummow JJ); Rana v Google Inc at [20].

Federal Jurisdiction in the Context of Tribunals - the submissions

1. The Trustees contend that no federal issue was raised by Mr Murphy, but that even if Mr Murphy's reliance on the DDA as a defence was a federal issue, nonetheless that does not deprive the Tribunal of jurisdiction with respect to the claim. The result, so it is contended, is that the defence is not justiciable by the Tribunal, although the claim remains so.
2. Assuming, for the purposes of considering this argument only, that the raising of the DDA as a defence constituted the raising of a federal issue, the Trustees maintain that the Tribunal has jurisdiction to order the removal of Rex, but does not have jurisdiction to consider the defence raised under the DDA.
3. The starting point for that argument is that only a court of a State may be invested with federal jurisdiction: by contrast, a Tribunal cannot be so invested. This means that, so far as jurisdiction is concerned, there can never be an inconsistency between State and federal law, such that under s 109 of the Constitution the State law must be read down.
4. To underscore this point, the Appeal Panel was directed to s 39 of the Judiciary Act 1903 (Cth) which first deprives a court of a State of jurisdiction where the High Court has original jurisdiction and then invests the court with that jurisdiction subject to certain conditions. It was submitted that, to the extent that a State law purports to invest federal jurisdiction, it would be inconsistent with any federal law that also does so; and so the State law must be read down, or else the court would have "double jurisdiction" with inconsistent rights of appeal depending on the source of the jurisdiction: Ffrost v Stevenson (1937) 58 CLR 528 at 573 (Dixon J); [1937] HCA 41; Felton v Mulligan at 412-3 (Walsh J); Moorgate at 479 (Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 32; MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 at [24] (Gleeson CJ, Gummow and Hayne JJ) and at [180] (Heydon, Crennan and Kiefel JJ); PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36 at [53] (French CJ, Kiefel, Bell, Gageler and Gordon JJ).
5. Once a court of a State is invested with federal jurisdiction pursuant to s 77(iii) of the Constitution, then any State law purporting to confer the same jurisdiction is inoperative, pursuant to s 109 of the Constitution. Put another way, a State law that purports to invest a court of a State with jurisdiction with respect to a matter that is within ss 75 and 76 of the Constitution is inoperative.

Federal Jurisdiction in the Context of Tribunals - consideration

1. As highlighted by the Trustees, NCAT's jurisdiction derives from Part 3 of the NCAT Act and s 128 of the RV Act. Section 29(1) of the NCAT Act provides that the Tribunal has "general jurisdiction over a matter if" legislation, other than the NCAT Act, so provides. A "general decision" is defined in s 29(3) of the NCAT Act as "a decision of the Tribunal determining a matter over which it has general jurisdiction". The term "matter" is not defined, but the Appeal Panel is satisfied that it is to be interpreted consistently with the way that that expression has been considered in cases such as Re Wakim. A matter is the whole of a single justiciable controversy; where there is "a common substratum of facts" there is but a single matter: Re Wakim at [140]. As noted in Re Wakim at [141], where there is a risk of inconsistent findings if the proceedings were fragmented, that gives a clue to the fact that there is, in truth, only one matter. To construe the Tribunal's power as allowing the determination of a part of a justiciable controversy would bedevil the "particular controversy", with the risk of inconsistent findings: Fencott v Muller at 609. The notion of a "matter" is a wide concept. It was been described by Greenwood J speaking extra judicially in A Paper Concerning Aspects of Federal Jurisdiction (19 August 2017), TC Beirne School of Law, University of Queensland at [58] as "the 'subject matter' for determination underlying or framed within a proceeding."
2. To consider a claim without its defence is to fragment a matter. For the Tribunal to consider only part of the controversy between the parties would not foster the interests of justice, where the task of the Tribunal is to quell controversy: Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [51]; Burns v Corbett at [21]. As the High Court explained in Fencott v Muller at 608: A judicial power which is not exercised to determine the whole of a controversy is, generally speaking, not appropriately and conveniently exercised. Not appropriately, because the controversy is not quelled; not conveniently, because the parties - the principal beneficiaries of the exercise of judicial power - must litigate anew to have the outstanding questions and issues determined.
3. Further, as Murphy J similarly explained in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 519: [I]t is highly inconvenient and an ineffective use of judicial power to fragment the case by determining different issues in different courts.

Do these Proceedings Constitute a Federal Matter?

1. As noted above, in order to determine when there is federal matter, it is necessary to consider the nature of the justiciable controversy.
2. The underlying contest between the parties concerns the Tribunal's order that Rex be removed from the village on the basis that Mr Murphy was in breach of Rule 5, which prohibits the keeping of dogs. Mr Murphy contends that Rule 5 does not apply to Rex because Rex is an assistance animal, as contemplated by s 9 of the DDA.
3. As the appeal progressed, it became apparent that there was a significant contest between the parties as to the nature of the justiciable controversy at first instance: in particular, there was disagreement about the context in which the DDA was raised at first instance and whether it was raised in such a fashion as to constitute the proceedings as a federal matter. The Appeal Panel asked the parties to submit a joint document (the Issues Document) that outlined the basis upon which they each contended that the DDA was raised at first instance. The substance of the Issues Document is as follows: Respondent's position The respondent submits that the DD Act figured in the proceeding below in the context of the following issues: 1. first, whether the Tribunal should exercise its discretion to order the removal of the dog under the RV Act, s 128(1)(c); 2. second, the extent to which rule 5 was of "no effect" pursuant to the RV Act, s 47; 3. third, the proper construction of the rule 5 as a matter of contractual interpretation; and, 4. fourth, whether the Companion Animals Act 1998 (NSW) was engaged by reason of s 5, which defines "assistance animal" by reference to s 9 of the Disability Discrimination Act. Appellant's position In relation to items 1 to 4 above, the appellant: a. agrees that the DD Act figured in the context of the issues identified at items 1 to 3; b. says in relation to each of those issues, that the DD Act was relevant on the footing that it was law in force and was the source of the prohibition on discrimination within certain limits as well as Mr Murphy's right not to be subjected to unlawful discrimination; and, c. does not agree that there was an issue in the nature of that described at item 4. The appellant says that, in addition, the DD Act figured in the proceeding below in the contexts of the following issues: 5. Whether the order sought by Catholic Trustees would be unlawful in that it would be contrary to the DD Act as it would sanction and give effect to unlawful discrimination against Mr Murphy in breach of that Act. 6. Whether discrimination by Catholic Trustees against Mr Murphy would not be unlawful on the ground that avoiding the discrimination would impose unjustifiable hardship on Catholic Trustees (DD Act ss 11 and 29A) - with the consequence that the order sought would not involve unlawful discrimination. 7. Whether discrimination by Catholic Trustees against Mr Murphy would not be unlawful on the ground Catholic Trustees was permitted to discriminate against Mr Murphy in the circumstances set out in DD Act s 54A - with the consequence that the order sought would not involve unlawful discrimination. Respondent's reply 8. The respondent does not agree that the DD Act was in issue in manner alleged by the appellant in paragraphs 5-7 above. It says further that the case was neither put nor decided on those bases below. To the extent those issues were raised, they were only ever raised within the context of the issues identified in paragraphs 1-4 above.

Conclusion on whether this is a Federal Matter

1. Whilst the Tribunal was mindful of the jurisdictional hiatus and stepped a careful path, the Appeal Panel is not satisfied that construing Rule 5 as if it "applies to dogs other than 'assistance animals' within the meaning of Section 9 of the DDA" was sufficient to avoid the result that the matter is a federal matter. The Appeal Panel is not satisfied that there is a path to avoiding the conclusion that the Tribunal does not have authority to adjudicate this matter. As noted above, a federal matter is a federal matter even where the matter is not disposed of by reference to the federal issue. Here, even though the Tribunal held that Rule 5 does not apply to assistance animals and on the facts as found by the Tribunal, that was the end of the enquiry; the federal issue - which, at least, included the extent of any inconsistency between Rule 5 and the DDA - was nevertheless raised. That issue was sufficient to constitute the matter as a federal matter.
2. Whilst s 55 of the RV Act requires residents (and operators) to comply with the village rules, the rules themselves are subject to s 47 of the RV Act, which provides that a "village rule is of no effect to the extent that it is inconsistent with this or any other Act or law." Accordingly, Rule 5 will have no effect to the extent that it is inconsistent with the DDA. In our view, it is not possible to work out the effect of Rule 5, without turning one's mind to whether - and the extent to which - it is inconsistent with the DDA. In this sense, the RV Act interacts with the DDA in a different manner to the way in which the Strata Schemes Management Act 2015 (NSW) interacts with the DDA (which operates by prohibiting a by-law from purporting to restrict or prohibit the keeping of an assistance animal, as defined by the DDA).
3. Insofar as the RV Act is concerned, in addition to considering the definition of assistance animal in s 9 of the DDA, it is relevant that the DDA makes it unlawful to discriminate against a person with a disability, either directly (s 5) or indirectly (s 6); and it is unlawful to discriminate against a person on the grounds of disability, in relation to the provision of goods and services (s 24) or accommodation (s 25). With respect to assistance animals, the DDA provides an exception to discrimination, if it is reasonably necessary to protect public health or the health of other animals. Further, s 11 of the DDA provides an exemption, in respect of discrimination against another person on the ground of a disability, if avoiding the discrimination would impose an unjustifiable hardship (as defined in s 29A) on the discriminator.

Orders

1. The Appeal Panel makes the following orders: 1. The time to file the Notice of Appeal is extended to 26 July 2018. 2. The appeal is allowed. 3. The order of 16 June 2018 for removal of Rex from the village is set aside and the application is dismissed. 4. If either party seeks to apply for costs, the parties are to file an application within 14 days of these orders. 5. Any costs application is to contain supporting material and submissions, including as to the jurisdiction of the Appeal Panel to award costs in light of the reasons herein and submissions in relation to whether any costs application should be determined on the papers. 6. The opposing party to any costs application is to provide submissions and supporting material within 7 days of the date of service of the costs application. The submissions are to include submissions as to whether the application should be determined on the papers.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2018